SBE-002 (REV 05/2005) / info-sdob-nsd-dec05item01
State of California / Department of Education
Information memorandum
Date: / November 29, 2005
TO: / Members, STATE BOARD of EDucation
FROM: / William J. Ellerbee, Jr., Deputy Superintendent
School and District Operations Branch
SUBJECT: / Emergency Regulations to Implement the California Fresh Start (CFS) Pilot Program per Education Code 49565.8(a).
On September 15, 2005, Senate Bill 281 (Maldonado) was signed into law as an urgency measure. SB 281 added Article 11.5 (commencing with Section 49565) to the California Education Code and establishes the California Fresh Start (CFS) Pilot Program. The California Department of Education (CDE) will administer the CFS Pilot Program in consultation with the California Department of Food and Agriculture (CDFA) and the California Department of Health Services (DHS).
The CFSPilot Programpromotes the consumption of nutritious fruits and vegetables by school age children by providing $18.2 million in funding for School Breakfast Programs (SBP). The law encourages public schools maintaining kindergarten or any grades 1 to 12, inclusive, to provide fruits and vegetables that have not been deep-fried to pupils in order to supplement other fruits and vegetables served in a SBP. Public school districts and charter schools participating in the SBP may participate in the CFS Pilot Program and apply for reimbursement of ten cents ($0.10) per meal to supplement, but not supplant, a school breakfast program.
SB 281 requires CDE to adopt any emergency regulations it deems necessary to implement the CFS Pilot Program after consultation with the State Board of Education (SBE), and the CDFA and DHS. Emergency regulations are needed to clarify some of the bill’s language, most specifically:
- What constitutes a “nutritious” fruit or vegetable eligible for purposes of reimbursement through the CFS Pilot Program?
The draft regulations being presented as an information item at this time will be finalized and presented to the SBE for review at the next regularly scheduled meeting in
January 2006. The definition of “nutritious” reflected in the draft regulations is likely to be revised based upon further discussion with CDFA, DHS, and other key stakeholders.
SB 281 further provides funds for an independent evaluation of the CFS Pilot Program and for the development of an online professional development seminar for Directors of Child Nutrition Programs. The CDE Nutrition Services Division (NSD) will be releasing Request for Applications (RFAs) for grants to be awarded through a
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competitive process to a CountyOffice of Education or CaliforniaCommunity College for both activities. The RFA for the online professional development seminar is anticipated for release in December 2005 and the RFA for the program evaluation will be released following the approval of the evaluation guidelines by the SBE.
Attachment 1: Finding of Emergency, California Fresh Start Pilot Program (2 pages)
Attachment 2: TITLE 5. Education, Division 1. California Department of Education,
Chapter 15. Child Nutrition Programs, Subchapter 1, Food Sales, Food Service, Nutrition Education (5 pages)
Attachment 3: Senate Bill No. 281 (4 pages)
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FINDING OF EMERGENCY
California Fresh Start Pilot Program
The State Board of Education finds that an emergency exists, and as required by Education Code section 49656.8, the emergency regulations adopted are necessary for the immediate preservation of the public peace, health and safety, or general welfare.
SPECIFIC FACTS SHOWING THE NEED FOR IMMEDIATE ACTION
Senate Bill (SB) 281 (Statutes of 2005, Chapter 236), an urgency statute effective September 15, 2005, added Education Code sections 49565, and 49565.1 through 49565.8 to establish the California Fresh Start (CFS) Pilot Program to provide fruits and vegetable for public school pupils to supplement other fruits and vegetables that are available to those pupils, and to promote the consumption of fresh fruits and vegetables by school age children. This bill requires the California Department of Education to administer the program in consultation with the California Department of Food and Agriculture and the State Department of Health Services. The bill also requires that the fruits and vegetables not be deep-fried or juice and that they supplement other fruits and vegetables served.
The SB 281 further requires that a school district or a charter school give priority to the purchase of fresh fruits and vegetables from California producers, when commercially available. Reimbursement for this program is ten cents ($0.10) per meal to be paid in quarterly installments by the California Department of Education, to supplement, but not supplant, a school breakfast program under Section 49550.3 or under the federal School Breakfast Program. Depositing of these funds must be into the nonprofit food service account of the school district or charter school.
There are no current regulations for this program because it is a new program. These regulations are necessary in order to implement the CFS in a timely manner and allow school districts and charter schools to participate in the CFS to provide public school pupils with supplementary servings of nutritious fruits and vegetables, and be able to seek reimbursement for such supplemental servings.
AUTHORITY AND REFERENCE
Authority: Sections 33031 and 49565.8, Education Code
Reference: Sections 49565, 49565.1, 49565.2, 49565.3, 49565.4, 49565.5, 49565.6, 49565.7, and 49565.8, Education Code.
INCORPORATION BY REFERENCE
The United States Department of Agriculture Food Buying Guide for Child Nutrition Programs (Guide), 2005 edition,is incorporated by reference because it would be cumbersome and impractical to publish it in the regulations. The Guide is available via the Regulations Coordinator.
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INFORMATIVE DIGEST
The SB 281 requires the California Department of Education to administer the CFS in consultation with the California Department of Food and Agriculture and State Department of Health Services to encourage public schools to provide fruits and vegetables to public school pupils and to promote the consumption of fresh fruits and vegetables by school age children.
The purpose of these regulations is to facilitate implementation of SB 281 by providing clear, consistent procedures for the CFS.
Article 5. California Fresh Start Pilot Program.
This Article is added in order to establish the requirements for participation in the California Fresh Start Pilot Program as set forth in SB 281.
Section 15566. Purpose and Scope.
This regulation is added to clarify the purpose and scope of the CFS.
Section 15567. Definitions.
This regulation is added to provide definitions for the terms used in SB 281 and these regulations.
Section 15568. Requirements for Participation.
This regulation is added to include specific participation requirements for school districts and charter schools in accordance with the requirements of SB 281.
Section 15569. Strategies.
This regulation is added to specify how the CFS funds may be used by school districts and charter schools in accordance with the requirements of SB 281.
MANDATE ON LOCAL AGENCIES OR SCHOOL DISTRICT
The State Board of Education has determined that the proposed emergency regulations do not impose a mandate on local agencies or school districts because the California Fresh Start Pilot Program is voluntary. Section 49565.1 of SB 281 states in part:
School districts and charter schools may apply for funding.
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COST ESTIMATE
Pending completion by the Fiscal and Administrative Services Division
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Title 5. EDUCATION
Division 1. California Department of Education
Chapter 15. Child Nutrition Programs
Subchapter 1. Food Sales, Food Service, Nutrition Education
Article 5. California Fresh Start Pilot Program
§ 15566. Purpose and Scope.
This article specifies the policies and regulations necessary to establish the California Fresh Start (CFS) Pilot Program that promotes the consumption of fresh fruits and vegetables by public and charter school pupils. CFS provides supplemental State reimbursement for breakfast meals served that meet the requirements of the CFS.
NOTE: Authority cited: Sections 33031 and 49565.8, Education Code. Reference: Section 49565, Education Code
§ 15567. Definitions.
As used in this article and the CFS Pilot Program, the term:
(a) “After school” means following the end of the school day. For kindergarten pupils, “After-school” means following the end of a morning or afternoon session.
(b) “Deep-fried” means any fruit or vegetable cooked by total submersion in oil or fat.
(c) “Department” means the California Department of Education.
(d) “Funds” means program reimbursement provided by the Department pursuant to provisions of the CFS.
(e) “Fresh fruits and vegetables ” means whole or portioned fruits and vegetables, including, but not limited to, those that are minimally processed.
(f) “Fruit” means ripened seed-bearing part of a plant developed from a flower, usually considered to be sweet and fleshy, as in apples, oranges, plums and strawberries.
(g) ”Grab and Go” means food that is packaged in a bag, box, or other container that can be picked up quickly and eaten “ on the go.”
(h) “Juice” means the extractable liquid that is contained in fruits or vegetables. Any liquid or frozen product labeled ”juice,” “full-strength juice,” “100% juice,” “single-strength juice, ” or “reconstituted juice” is included in this definition.
(i) “Meal” means breakfast, as defined in 7 CFR 220.2(b), unless otherwise specified.
(j) “Minimally processed” means fruits and vegetables prepared and handled to maintain their fresh nature while providing convenience to the user by pre-cleaning, washing, trimming, coring, slicing, shredding, and other similar actions. Other terms used to refer to minimally processed products are “lightly processed,” “partially processed,” “fresh processed,” and “prepared .”
(k) “Nonprofit [school] food service” means all food service operations conducted by the School Food Authority principally for the benefit of school children, all of the revenue from which is used solely for the operation or improvement of such food service.
(l) “Nutrition education” means a broad range of activities that promote and enable healthy eating behaviors.
(m) “Nutritious fruits or vegetables” means fruits or vegetables that are fresh, or that are canned, dried, or frozen without any added sweeteners.
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(n) “School Breakfast Program” (SBP) means the federal program operated pursuant to 7 CFR 220.2(b).
(o) “Serving” means an amount of fruit(s) and/or vegetable(s), equal to one half(1/2)cup or as referenced in the United States Department of Agriculture (USDA) Food Buying Guide for Child Nutrition Programs (2001 edition).
(p) “Site” means a public elementary school, middle school, junior high school, or high school, including a charter school, in California, operating classes for pupils in a single building or complex of buildings, or any public classes of preprimary grade when they are conducted in the aforementioned school that participate in the School Breakfast Program.
(q) “Supplant” means “to substitute for” and/or “take the place of.”
(r) “Tasting and Sampling” meansoffering a taste or small portion of fresh fruits and/or vegetables to pupils outside of a school meal program.
(s) “Universal classroom breakfast” means providing all children breakfast in the classroom at no charge.
(t) “Vegetable” means a plant cultivated for an edible part, such as the root, stem, leaf, or flower, such as spinach, broccoli and carrot.
NOTE: Authority cited: Section 49565.8, Education Code. Reference: Sections 8482.3, 38080 et seq., 49534, and 49565, Education Code; Title 7 Code of Federal Regulations, Parts 210 and 220; Child Nutrition and WIC Reauthorization Act of 2004; Child Nutrition Act of 1966.
§ 15568. Requirements for Participation.
All school districts and charter schools that operate a SBP are eligible to participate in the CFS. To receive reimbursement, the school district or charter school shall agree to:
(a)(1) Provide one or more supplemental servings of nutritious fruits or vegetables, or both, at breakfast, at no additional charge to a pupil;
(2) If already serving two nutritious fruits and/or vegetables at a site during breakfast, the district or charter school may provide one to two servings of nutritious fruits and vegetables for after school snacks. Such snacks do not need to be provided through the NationalSchool Lunch Program (NSLP), but if they are, serving size requirements may differ from the one-half (1/2) cup required for the CFS Pilot Program.
(b) Spend at least 90 percent of the CFS funding received on the direct purchase of nutritious fruits or vegetables, or both, and give priority to purchasing California-produced fresh fruits or vegetables.
(c) Not spend any of the funding for the purchase of juice or for the provision of fruits and vegetables that have been deep fried.
(d) Provide data as required by the independent evaluator pursuant to Education Code section 49565.7(b).
(e) Deposit all reimbursements in the nonprofit food service account of the school district or charter school.
(f) Use the reimbursement to supplement, but not to supplant, state and federal funding used to support the SBP.
(g) Expend the CFS reimbursement funds only for the benefit of participating school sites.
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(h) Claim reimbursement only for meals that provide at least one supplemental serving of a nutritious fruit and/or vegetable. Reimbursement can be claimed for meals served on all or some school days.
(i) Include tasting and sampling of nutritious fruits and vegetables as part of nutrition education at school sites participating in the CFS. Strategies for nutrition education that include tasting and sampling of nutritious fruits or vegetables, or both, may include, but are not limited to:
(1) Educational sampling and tasting supported with nutrition education.
(2) An offering of fruits or vegetables in the classroom that is reinforced with nutrition and agricultural bulletins.
(3) A monthly school campus farmers' market that highlights California fruits and vegetables for the student body to sample and taste, including:
(a) Demonstration markets that allow students or school-sponsored organizations to sell and offer samples of California ’s fruits and vegetables, obtained by the school, school district, or school organization directly from farmers to students.
(b) Certified farmers’ markets operated by, or in coordination with, students or school-sponsored organizations, on school grounds, in compliance with applicable state statutes and regulations.
(4) A produce sampling program that supports a school garden's harvest through additional purchases of local, in-season fruits or vegetables to be used for a sampling and tasting program for the school campus featuring what is growing in the school garden.
NOTE: Authority cited: Sections 33031 and 49565.8, Education Code. Reference: Sections 49565.1, 49565.2, 49565.3, 49565.4, and 49565.6, Education Code.
§ 15569. Strategies.
Specific strategies for the provision of one to two servings of nutritious fruits or vegetables, or both, may include, but not be limited to, one or more of the following:
(a) Fruit bars containing choices of fruits or vegetables, or both.
(b) Grab and Go breakfasts with one to two servings of fruits or vegetables, or both, to be eaten on the school campus.
(c) Universal Classroom Breakfast that includes one to two servings of fruits or vegetables, or both.
NOTE: Authority cited: Sections 33031 and 49565.8, Education Code. Reference: Section 49565.5, Education Code.
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Senate Bill No. 281
CHAPTER 236
An act to add Article 11.5 (commencing with Section 49565) to Chapter
9 of Part 27 of the Education Code, relating to pupil nutrition, making an
appropriation therefor, and declaring the urgency thereof, to take effect
immediately.
[Approved by Governor September 15, 2005. Filed with
Secretary of State September 15, 2005.]
legislative counsel’s digest
SB 281, Maldonado. California Fresh Start Pilot Program.
Existing state and federal laws require all schools participating in meal
programs to provide nutritious food and beverages to pupils.
Existing law requires that the sale of all foods on school grounds at an
elementary school be approved for compliance with specified nutrition
standards.
Existing law requires that a minimum of 50% of the food items, except
as specified, offered for sale each schoolday at any schoolsite by any entity
or organization during regular school hours be selected from a list of
specified items, including specified fruits, vegetables, and fruit and
vegetable juices.
Existing law requires the State Department of Health Services to
establish and implement, to the extent funds other than state general funds
are available, a “5 A Day—For Better Health” program for the purpose of
promoting public awareness of the need to increase the consumption of
fruits and vegetables as part of a low-fat, high-fiber diet in order to
improve health and prevent major chronic diseases, including diet-related
cancers.
This bill would establish, within the State Department of Education, the
California Fresh Start Pilot Program, to be administered by the
department, in consultation with the Department of Food and Agriculture
and the State Department of Health Services, in order to encourage public
schools maintaining kindergarten or any of grades 1 to 12, inclusive, to
provide fruits and vegetables that have not been deep fried to pupils in
order to supplement other fruits and vegetables that have not been deep
fried and that are available to those pupils, and in order to promote the
consumption of nutritious fruits and vegetables by schoolage children.
The bill would make an appropriation by requiring that, of the funds
appropriated in a specified item of the Budget Act of 2005, $400,000 shall
be available for the department to provide grants to a county office of
education or a community college selected on a competitive basis, to be
allocated in the amount of not more than $100,000 to develop an online
professional development seminar for schoolsite staff on serving,
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marketing, and promoting nutritious fruits and vegetables, and not more
than $300,000 to contract with an independent evaluator to conduct a
comprehensive evaluation, as specified.
The bill would require the department, in consultation with the
Department of Food and Agriculture, the State Department of Health
Services, and the State Board of Education, to develop emergency
regulations necessary to implement the program and to establish guidelines
for the administration and evaluation of the program.
This bill would declare that it is to take effect immediately as an
urgency statute.
Appropriation: yes.